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Cameras Cast A Chill On Atty-Prisoner Consults, Court Says

By Emma Cueto | December 9, 2018, 8:02 PM EST

The initial meeting between an attorney and a criminal client who is "tired, hungry, confused, distrusting and frustrated" from arrest and imprisonment can be fraught, but what if you also include a mention that the room where the defendant is supposed to spill his or her guts is outfitted with a video camera?

Whether or not that equipment is recording audio, introducing cameras into the equation, and in turn forcing lawyers to point them out, "would further poison this already fragile first encounter," legal aid attorneys and their advocates said in a 2015 court filing challenging New York City jail practices.

And while a federal court eventually ruled that city jails could put video cameras in the private rooms designated for attorneys to confer with their clients, the Second Circuit on Dec. 3 echoed the kind of arguments that legal aid attorneys have been making for years.

Even if the cameras were not equipped to pick up audio, their mere presence could intimidate people and stop them from speaking openly with their attorneys, the appellate court found, overturning the district court's decision.

This month's ruling in Grubbs v. O'Neill represents the latest chapter in a legal saga stretching all the way back to 1992, when New York City residents first sued to stop allegedly unconstitutional practices in the city's jails. According to the Second Circuit, the city violated a 1999 settlement agreement in that litigation by putting cameras into attorney booths in a new courthouse on Staten Island.

"While we agree with the district court that the 1999 settlement agreement does not expressly prohibit surveillance," the Second Circuit said, "we find that the district court did not engage in the proper balancing analysis when it concluded that the city's use of masked surveillance technology comports with the settlement's requirement that the city provide a space where detainees can 'consult privately' with their attorneys."

A lack of private space for attorney consultation was among the various complaints that the New Yorkers who brought the suit initially raised in 1992, and the settlement agreement required the city to construct booths for such consultations in its existing facilities, according to the decision.

However, after the city built a new courthouse facility on Staten Island, which officially opened in 2015, it decided that, because guards could not see inside the booths from their posts, the facility should have cameras in the booths for safety reasons, the decision said.

The cameras did not show the attorney side of the booth and had their audio functions disabled, according to the decision. The city also experimented with "masking technology" which would blur out part of the screens, the decision said.

For the district court, these precautions were enough; for the Second Circuit, they decidedly were not.

Even with posted signs telling people that the cameras did not pick up sound, the decision said, the mere presence of cameras could have a "chilling effect" on detainees, preventing them from feeling able to speak openly with their attorneys and effectively denying their right to counsel, the panel said.

Moreover, it noted, the district court should have considered this chilling effect in its decision, since it was a major part of why the court originally ruled in the 1990s that the city was violating residents' constitutional rights, a ruling that prompted the settlement at issue now.

However, it declined to overturn the district court's decision not to sanction the city for allegedly turning the cameras on, despite a court order telling it to hold off until the current legal dispute was resolved.

The case will return to the district court for further consideration, and attorneys for The Legal Aid Society, which worked on the appeal, celebrated the appellate victory.

"Today's ruling is a victory for the Sixth Amendment and a victory for due process," said Tina Luongo, attorney in charge of the criminal practice at The Legal Aid Society.

"Our clients are entitled to meet with their attorneys in private, a fundamental part of the right to counsel," she said. "We look forward to arguing the merits of this Sixth Amendment chilling effect on our clients' right to speak freely with counsel, and call on the city to terminate this practice on Staten Island and elsewhere in the interim."

Colin West, another attorney for the residents, told Law360 that he was also pleased by the decision, saying that in his view the city was treating this as a "test case" and might have greatly expanded use of cameras had it prevailed. 

But despite the very favorable ruling, the team also wasn't going to take anything for granted going back to the lower court. "I would hesitate to predict what the next steps are until we have some sort of guidance from [the district court judge]," he said.

Counsel for the city did not respond Wednesday to a request for comment.

--Editing by Katherine Rautenberg.

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